Metropolitan Water District v. Questar Gas Company

2015 UT App 265THE UTAH COURT OF APPEALS
METROPOLITAN WATER DISTRICT OF SALT LAKE & SANDY,
Appellant,
v.
QUESTAR GAS COMPANY,
Appellee.
Opinion
No. 20140050-CA
Filed October 29, 2015
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 120905379
Shawn E. Draney, Rodney R. Parker, Scott H. Martin,
and Dani N. Cepernich, Attorneys for Appellant
Edwin C. Barnes, Perrin R. Love, Shannon K.
Zollinger, Colleen Larkin Bell, and Joseph D. Kesler,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and KATE A. TOOMEY concurred.
ORME, Judge:
¶1 The Metropolitan Water District of Salt Lake & Sandy (the
District) appeals from the district court’s denial of the District’s
motion for summary judgment and the dismissal of its claims.
We affirm.
Metropolitan Water District v. Questar Gas Company
BACKGROUND 1
¶2 The District owns and operates the Salt Lake Aqueduct
(the SLA), a water pipeline that delivers water from Deer Creek
Reservoir to the Little Cottonwood Water Treatment Plant before
carrying the treated water to various storage facilities. The SLA
was constructed between 1939 and 1951 as part of the Bureau of
Reclamation’s (the BOR) Provo River Project. According to the
District, the “SLA corridor consists of fee lands, deeded
easements, and easements reserved in federal land patents
pursuant to the Canal Act of 1890[.]” 2 The portion of the SLA at
issue in this case was constructed within a non-exclusive
easement reserved by a federal land patent dated May 5, 1898. In
1955, after construction of the SLA, the land encumbered by the
SLA was dedicated to Salt Lake County for public use. The
relevant part of the SLA lies under the western edge of
Westview Drive, a residential street in Salt Lake County.
1. “[I]n reviewing a denial of summary judgment, we view the
facts and all reasonable inferences drawn therefrom in the light
most favorable to the nonmoving party.” Utah Dep’t of Envtl.
Quality v. Redd, 2002 UT 50, ¶ 3, 48 P.3d 230.
2. The Canal Act of 1890 provides:
In all patents for lands taken up after August 30,
1890, under any of the land laws of the United
States or on entries or claims validated by this Act,
west of the one hundredth meridian, it shall be
expressed that there is reserved from the lands in
said patent described a right of way thereon for
ditches or canals constructed by the authority of
the United States.
43 U.S.C.A. § 945 (West 2007). Within the United States, the
hundredth meridian west of Greenwich runs from the Canada–
North Dakota border in the north through Texas in the south.
20140050-CA 2 2015 UT App 265Metropolitan Water District v. Questar Gas Company
¶3 Questar Gas Company (Questar) maintains a natural gas
pipeline, two inches in diameter, which runs parallel to the SLA
on the opposite side—the east side—of Westview Drive. A sewer
line and a water line also run between Questar’s pipeline and the
SLA. Questar’s pipeline provides natural gas to the homes along
Westview Drive and crosses the SLA in four locations. In 1956,
Questar’s pipeline was installed pursuant to two gas franchises
granted by Salt Lake County in 1928 (the 1928 Franchise
Agreements) and construction permits granted in 1956. 3 The
1928 Franchise Agreements authorized Questar to “lay and
construct all pipe lines under this franchise in accordance with
modern and established practice and in such a manner as not to
unreasonably interfere with water pipes which may have been
previously laid.” Before Questar constructed its pipeline, it also
entered into a fifty-year license agreement (the 1956 License
Agreement) with the BOR on December 5, 1956. Under the 1956
License Agreement, Questar’s pipeline was acknowledged to
“not be incompatible with the purposes for which [easements for
the SLA] were acquired and are being administered.” The 1956
License Agreement expired on December 5, 2006.
¶4 Two months before the 1956 License Agreement expired,
the BOR quitclaimed the SLA and the non-exclusive easement to
the District. Consequently, when the 1956 License Agreement
expired, the District asked Questar to sign a new license
agreement for the continued presence of Questar’s pipeline
within the SLA corridor. The parties negotiated extensively in an
effort to formulate the terms of a new license agreement. They
were not successful, primarily because of Questar’s insistence
3. The 1928 Franchise Agreements were granted to Utah Gas and
Coke Co., John McFayden, and L.B. Denning. The 1956
construction permits were granted to Mountain Fuel Supply Co.
For ease of discussion, we refer to Questar Gas Company and all
of its predecessors collectively as Questar.
20140050-CA 3 2015 UT App 265Metropolitan Water District v. Questar Gas Company
that it is not subject to the District’s regulations by reason of its
franchise agreement with Salt Lake County.
¶5 In 2001, Questar had entered into a franchise agreement
(the 2001 Franchise Agreement) with Salt Lake County. The 2001
Franchise Agreement authorizes Questar to “construct, maintain
and operate in the present and future roads, streets, alleys,
highways and other public rights-of-way . . . within County
limits a distribution system for furnishing natural and
manufactured gas to the County, the County’s inhabitants and
persons for heating and other purposes.” The agreement is silent
regarding interference with existing utility lines.
¶6 The District has adopted regulations for non-district use
of the SLA. Among other things, the District’s regulations
provide that utility crossings require a license agreement. In
particular, one regulation provides:
Utility crossings of Aqueduct Corridors
require a License Agreement on an individual
basis. All applicable state, city, and county
regulations shall be adhered to in the construction
of utilities. Where utilities will be constructed by or
for a developer, but dedicated to a municipality or
other local governmental entity or regulated public
utility, the District will require the License
Agreement to be signed by both the developer and
that municipality or other local governmental
entity or regulated public utility. Parallel utilities
are not allowed within Aqueduct Corridors. Metal
pipes which are in close proximity to and may
affect District pipelines shall implement corrosion
protection measures that provide adequate
protection of the District’s pipelines.
¶7 In August 2012, the District filed a complaint against
Questar. Thereafter, the District filed a motion for summary
20140050-CA 4 2015 UT App 265Metropolitan Water District v. Questar Gas Company
judgment seeking a declaratory judgment that, among other
things, Questar’s pipeline belongs to the District because the
1956 License Agreement expired in 2006, the District has
statutory authority to require a licensing agreement for
Questar’s continued occupancy in the SLA corridor, and
Questar’s continued presence in the SLA corridor (absent an
agreement with the District) amounts to “trespass, interference
with waterway, and public nuisance as a matter of law.”
¶8 The district court denied the District’s motion and issued
a memorandum decision. Noting that the District and Questar
“have had their respective pipelines in the easement for more
than sixty years without any problems or interference with each
other and there is no issue of interference at this time,” the
district court concluded that Questar’s pipeline did not
“constitute an unreasonable interference on the SLA.” The court
also concluded that “nothing contained in the statutes nor [the
District]’s regulations, grant [the District] unilateral authority to
modify or interfere with [Salt Lake] County’s right to grant a
franchise to Questar, or to claim ownership of Questar’s
Pipelines.” Finally, the court concluded that the District “is the
holder of a non-exclusive easement, and Questar Gas maintains
its Pipelines pursuant to permits approved by Salt Lake
County.” Accordingly, the court could “find no trespass, public
nuisance, nor interference as a matter of law.”
¶9 On December 17, 2013, the district court issued a notice of
inquiry, asking whether “this matter can be dismissed in view of
its memorandum decision.” In response, Questar filed a request
for dismissal along with a proposed order of dismissal without
prejudice, which the District opposed. About two weeks later,
the district court signed the proposed order of dismissal, thereby
dismissing, without prejudice, the District’s claims in their
entirety. The court concluded:
[W]ith respect to the easements at issue: (1) [the
District] is the holder of a non-exclusive easement
20140050-CA 5 2015 UT App 265Metropolitan Water District v. Questar Gas Company
in the [SLA]; (2) Questar maintains its gas pipelines
in the SLA pursuant to permits approved by the
fee owner of Westview Drive and other public
roads at issue in this case, Salt Lake County; (3) the
1956 License Agreement . . . is expired, and nothing
contained in the Utah Code, or [the District]’s
regulations, grant [the District] unilateral authority
to modify or interfere with Salt Lake County’s right
to grant a franchise to Questar, or for [the District]
to claim ownership of Questar’s pipelines; (4) as
such, [the District] and Questar must exercise their
rights so as not to unreasonably interfere with the
other, and only in the event of an irreconcilable
conflict are Questar’s rights subservient to [the
District], as [the District]’s easement is first in time;
and (5) the parties have had their respective
pipelines in the SLA for more than sixty years
without interference with each other and there is
no issue of interference to be adjudicated at this
time.
¶10 The District appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 First, the District contends that the district court erred “in
holding that Questar need not comply with [the District’s]
regulations because [Questar’s] franchise from Salt Lake County
allows it to install gas pipelines under dedicated roadways, and
[the District] lacks ‘unilateral authority to modify or interfere
with the County’s right to grant a franchise to Questar.’” Second,
the District contends that even if its regulations are not
applicable to Questar, the district court erred “in failing to
conclude as a matter of law that the unlicensed presence of
[Questar’s] high-pressure gas pipeline in the SLA corridor
easement is an unreasonable burden on the easement.”
20140050-CA 6 2015 UT App 265Metropolitan Water District v. Questar Gas Company
¶12 “Summary judgment is appropriate where (1) there is no
genuine issue as to any material fact and (2) the moving party is
entitled to a judgment as a matter of law.” Hillcrest Inv. Co. v.
Utah Dep’t of Transp., 2012 UT App 256, ¶ 11, 287 P.3d 427(citation and internal quotation marks omitted). “A district
court’s ruling on either a motion to dismiss or a motion for
summary judgment is a legal question which we review for
correctness[.]” Commonwealth Prop. Advocates, LLC v. MERS, Inc.,
2011 UT App 232, ¶ 6, 263 P.3d 397. See also Orvis v. Johnson, 2008
UT 2, ¶ 6, 177 P.3d 600 (“An appellate court reviews a trial
court’s legal conclusions and ultimate grant or denial of
summary judgment for correctness and views the facts and all
reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.”) (citations and internal
quotation marks omitted); Rushton v. Salt Lake County, 1999 UT
36, ¶ 17, 977 P.2d 1201 (“The proper interpretation of a statute is
a question of law. Therefore, when reviewing an order of
dismissal involving the interpretation of a statute, we accord no
deference to the legal conclusions of the district court but review
them for correctness.”) (internal citation omitted).
ANALYSIS
I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT
THE DISTRICT DOES NOT HAVE STATUTORY AUTHORITY
TO REGULATE PUBLIC UTILITIES, INCLUDING QUESTAR.
¶13 The District argues that the district court erroneously
failed “to recognize [the District]’s statutory right, as a Utah local
district, to promulgate regulations that protect critical
infrastructure.” 4 The District contends that it has both express
4. Section 17B-1-103 of the Utah Code describes a local district as
“(i) a body corporate and politic with perpetual succession; (ii) a
quasi-municipal corporation; and (iii) a political subdivision of
(continued…)
20140050-CA 7 2015 UT App 265Metropolitan Water District v. Questar Gas Company
and implied statutory authority to regulate Questar and other
public utilities within the SLA.
¶14 Specifically, the District argues that it has an “express
statutory grant of regulatory authority” under Utah Code
section 17B-1-301, which states that the board of trustees for a
local district may “adopt and enforce rules and regulations for
the orderly operation of the local district or for carrying out the
district’s purposes.” Utah Code Ann. § 17B-1-301(2)(i)
(LexisNexis Supp. 2014). The District also relies on Union Pacific
Railroad v. Utah Department of Transportation, 2013 UT 39, 310
P.3d 1204, for the proposition that its regulatory powers include
“not only the regulatory powers expressly granted to it, but also
those ‘which are clearly implied as necessary to the discharge of
the duties and responsibilities imposed upon it.’” Id. ¶ 13(quoting Basin Flying Serv. v. Public Serv. Comm’n, 531 P.2d 1303,
1305 (Utah 1975)). Therefore, the District argues, it also has the
“implied authority necessary to discharge its responsibility to
protect the SLA.”
¶15 The District notes that under this statutory grant of
authority to adopt regulations, its board of trustees promulgated
“Regulations for Non-District Use of Salt Lake Aqueduct and
Point of the Mountain Aqueduct Corridors” to “define the
parameters of public use and occupancy of [the District]’s fee
and easement lands, and . . . to protect the public’s property
rights, water infrastructure, and [the District]’s operations.” The
District further observes that its primary purpose as an entity is
“to secure water rights and distribution facilities to ensure
adequate water supplies for the Salt Lake Valley now and for the
future.” Thus, the District asserts, “[i]t is inconceivable that [its]
statutory authority [under Utah Code section 17B-1-301(2)(i)]
(…continued)
the state.” Utah Code Ann. § 17B-1-103(1)(a) (LexisNexis Supp.
2014).
20140050-CA 8 2015 UT App 265Metropolitan Water District v. Questar Gas Company
does not include the implied authority to regulate activities
within the SLA corridor that may interfere with [its] core
purpose.” We disagree.
¶16 To begin with, nothing in section 17B-1-301 of the Utah
Code provides express authority for the District (or any local
district) to regulate a public utility, including Questar. See Utah
Code Ann. § 17B-1-301. Although the District’s board of trustees
may “adopt and enforce rules and regulations for the orderly
operation of the [District] or for carrying out [its] purposes,” see
id. § 17B-1-301(2)(i), the kind of regulatory authority the District
wishes to assert is not the kind of regulatory authority intended
by the statute. Nothing in section 17B-1-301 expressly authorizes
regulation of public utilities, a matter entrusted rather
comprehensively to the Utah Public Service Commission. See id.
§ 54-4-1 (2010) (giving the commission power to “regulate every
public utility in this state”).
¶17 The District also relies on its enumerated powers under
section 17B-1-103 of the Utah Code for its alleged express
authority to regulate public utilities. See id. § 17B-1-103 (Supp.
2014). Among other things, section 17B-1-103 generally
empowers all local districts to “acquire or construct works,
facilities, and improvements necessary or convenient to the full
exercise of the district’s powers, and operate, control, maintain,
and use those works, facilities, and improvements,” id. § 17B-1-
103(2)(d); to “perform any act or exercise any power reasonably
necessary for the efficient operation of the local district in
carrying out its purposes,” id. § 17B-1-103(2)(q); and to agree
with another political subdivision of the state or a public or
private owner of property to allow use of property “owned by
the district” or “on which the district has a right-of-way” “upon
the terms and for the consideration . . . that the district’s board of
trustees considers to be in the best interests of the district and the
public,” id. § 17B-1-103(2)(t). As with section 17B-1-301, nothing
20140050-CA 9 2015 UT App 265Metropolitan Water District v. Questar Gas Company
in section 17B-1-103 expressly authorizes the District to regulate
Questar or any other public utility within the SLA or elsewhere. 5
¶18 We gather that if the Legislature had intended to
empower local districts to regulate public utilities, it could have
easily provided an express grant of authority within either
section 17B-1-103 or 17B-1-301 of the Code. See Standard Fed. Sav.
& Loan Ass’n v. Kirkbride, 821 P.2d 1136, 1138 (Utah 1991) (“If that
is what the legislature intended to accomplish, it certainly knows
how to do so.”). Indeed, the Legislature has provided other
5. Nor, oddly enough, can the District regulate the possession of
knives within its boundaries. See Utah Code Ann. § 17B-1-
103(6)(a) (LexisNexis Supp. 2014). That section specifically
reserves to the State the right to regulate knives and specifically
prohibits a local district from adopting or enforcing regulations
or rules pertaining to knives. See id. § 17B-1-103(6)(b)–(c).
According to Senator Christensen, who introduced the bill in the
Senate,
[s]everal locations and communities within the
state have decided that, or tried to decide that, it
was not legal to have weapons, specifically guns,
so that you could [not] carry them. We’ve
overcome that by passing statewide laws that are,
makes it legal to carry now that you know where
you can [and] where you can’t. We’ve run into a
problem now with people carrying knives and
communities trying to outlaw the carrying of a
knife, considering it a weapon. Therefore, and it’s
been becoming a problem, we would like to pass
that, with the same protections, Second
Amendment rights, to knives as there are to guns.
Senate Floor Debates, H.B. 271, 59th Leg., Gen. Sess. (Utah Feb.
28, 2011) (statement of Sen. Allen M. Christensen), http://utah
legislature.granicus.com/mediaplayer.php?clip_id=8874&meta_i
d=429993.
20140050-CA 10 2015 UT App 265Metropolitan Water District v. Questar Gas Company
governmental entities with the express authority to regulate
public utilities. For example, the Utah Department of
Transportation (UDOT) has express statutory authority to “make
rules for the installation, construction, maintenance, repair,
renewal, system upgrade, and relocation of all utilities.” 6 Utah
Code Ann. § 72-6-116(2)(a) (LexisNexis Supp. 2014). More
broadly, the Public Service Commission has express authority to
“regulate every public utility in this state.” See id. § 54-4-1 (2010).
The District has no comparable grant of express authority, and
these provisions demonstrate that the Legislature has committed
the regulation of public utilities to governmental entities other
than local districts.
¶19 Nevertheless, relying on Union Pacific Railroad v. Utah
Department of Transportation, 2013 UT 39, 310 P.3d 1204, the
District argues that it has the implied power to regulate
Questar’s and other public utilities’ pipe and cable installations
within the SLA corridor. See id. ¶ 13 (“As a body created by and
deriv[ing] its powers and duties from statute, UDOT has not
only the regulatory powers expressly granted to it, but also those
which are clearly implied as necessary to the discharge of the
duties and responsibilities imposed upon it.”) (alteration in
original) (citation and internal quotation marks omitted). We do
not see how the ability to regulate Questar and other public
utilities within the SLA corridor is necessary to the District’s
ability to carry out its duties and responsibilities. In simplest
terms, we fail to see how the District cannot “secure water rights
and distribution facilities to ensure adequate water supplies for
the Salt Lake Valley now and for the future” simply because
Questar has a pipeline on the opposite side of Westview Drive,
6. “‘Utility’ includes telecommunication, gas, electricity, cable
television, water, sewer, data, and video transmission lines,
drainage and irrigation facilities, and other similar utilities
whether public, private, or cooperatively owned.” Utah Code
Ann. § 72-6-116(1)(b) (LexisNexis Supp. 2014) (emphases added).
20140050-CA 11 2015 UT App 265Metropolitan Water District v. Questar Gas Company
even if the pipeline crosses the SLA in four locations. The
District has been, and is currently, fulfilling its intended purpose
despite the presence of Questar’s pipeline (and other utility
lines) beneath Westview Drive. And as the district court noted,
there has never been a problem posed by the proximity of the
SLA and Questar’s pipeline.
¶20 The District further asserts that “[t]he regulatory
authority [it] is exercising over the SLA corridor is the same
authority that is exercised by all manner of governmental
entities,” including the BOR, UDOT, and Sandy City. The
District notes that “before the Bureau of Reclamation transferred
the SLA corridor to [the District] in 2006, it also exercised
regulatory authority within the corridor” and that Questar “was
required to comply with that regulatory authority, and enter into
the 1956 License Agreement, before it was allowed to install its
gas pipeline within the corridor.”
¶21 However, the BOR, through the Secretary of the Interior,
has express statutory authority to grant leases and licenses in
certain federal lands. See 43 U.S.C.A. § 387(b) (West 2007). The
District’s board of trustees has no such comparable authority
under Utah Code section 17B-1-301. But more importantly, when
the BOR quitclaimed the SLA to the District, it explicitly did so
subject to “valid permits, licenses, leases, rights-of-use, or rights-
of-way of record or outstanding on, over, or across the Real
Property in existence on the date of this Quitclaim Deed,” which
would include Salt Lake County’s franchise grant to Questar.
Thus, the District took the SLA corridor subject to Salt Lake
County’s franchise grant to Questar.
¶22 The District also compares itself to UDOT, which “has
comprehensive regulations of utility and telecommunication use
of highway rights-of-way.” The District notes that “[u]nder these
regulations, utilities are required to obtain an encroachment
permit from UDOT for the installation and maintenance of
utility facilities in the right-of-way.” However, as previously
20140050-CA 12 2015 UT App 265Metropolitan Water District v. Questar Gas Company
discussed, see supra ¶ 18, UDOT has express statutory authority
to regulate and relocate utilities in its rights-of-way. See Utah
Code Ann. § 72-6-116(2)(a) (LexisNexis Supp. 2014). Again, the
District has no comparable express authority.
¶23 Next, the District compares itself, by implication, to Sandy
City and Salt Lake County, its two member entities. However,
under section 72-7-102 of the Utah Code, “[a] highway authority
having jurisdiction over the right-of-way may allow excavating,
installation of utilities and other facilities or access under rules
made by the highway authority[.]” Id. § 72-7-102(3)(a) (emphasis
added). “The rules may require a permit for any excavation or
installation[.]” Id. § 72-7-102(3)(b)(i). “‘Highway authority’
means [UDOT] or the legislative, executive, or governing body
of a county or municipality.” Id. § 72-1-102(8) (2009). Taken
together, these provisions expressly authorize Sandy City and
Salt Lake County, as well as UDOT, to regulate utilities in the
streets and to require permits.
¶24 In this case, the highway authority with jurisdiction over
the portion of the SLA under Westview Drive is Salt Lake
County. As it is entitled to do, Salt Lake County has enacted
rules governing excavation and the installation of utilities within
its roadways. See, e.g., Salt Lake County, Utah, Code of
Ordinances § 14.16.010, https://www.municode.com/library/ut/
salt_lake_county/codes/code_of_ordinances (last visited October
6, 2015). 7
¶25 Far from possessing the same regulatory authority as
UDOT, Salt Lake County, or Sandy City, the District is, in fact,
subject to their rules and regulations governing roads. As a local
district in Utah, the District may use the roads, and it has the
7. Sandy City has done likewise. See Sandy City Ordinance no.
10-36, § 13-1-2, http://sandy.utah.gov/fileadmin/downloads/pw/
Ordinance10-36.pdf (last visited Oct. 6, 2015).
20140050-CA 13 2015 UT App 265Metropolitan Water District v. Questar Gas Company
express authority to “construct and maintain works and
establish and maintain facilities . . . across or along any public
street or highway.” Utah Code Ann. § 17B-1-103(p)(i)
(LexisNexis Supp. 2014). However, the District’s authority is not
without limitation. Particularly, the District—like Questar—
must
comply with the reasonable rules and regulations of the
governmental entity, whether state, county, or
municipal, with jurisdiction over the street or highway,
concerning:
(i) an excavation and the refilling of an
excavation;
(ii) the relaying of pavement; and
(iii) the protection of the public during a
construction period . . . .
Id. § 17B-1-103(3)(a) (emphasis added). The District enjoys no
statutory authority to regulate public utilities comparable to the
express statutory authority of UDOT, Salt Lake County, and
Sandy City.
¶26 Moreover, unlike the District, Salt Lake County has the
express authority to grant franchises in its roads.
A county may grant franchises along and over the
public roads and highways for all lawful purposes,
upon such terms, conditions, and restrictions as in
the judgment of the county legislative body are
necessary and proper, to be exercised in such
manner as to present the least possible obstruction
and inconvenience to the traveling public.
Id. § 17-50-306(1) (2013). In this case, the district court concluded
that “nothing contained in the Utah Code, or [the District]’s
20140050-CA 14 2015 UT App 265Metropolitan Water District v. Questar Gas Company
regulations, grant[s the District] unilateral authority to modify or
interfere with Salt Lake County’s right to grant a franchise to
Questar[.]” We agree. Salt Lake County has the express authority
to grant franchises and the District may not interfere with that
authority. Accordingly, the District’s argument that “[t]he
regulatory authority [it] is exercising over the SLA corridor is the
same authority that is exercised by all manner of governmental
entities,” such as the BOR, UDOT, Sandy City, and Salt Lake
County, is without merit.
¶27 In addition, having multiple public utilities within one
easement is undoubtedly in the public interest. Indeed, the Utah
Supreme Court has previously “enunciated the public policy of
this State in regard to the multiple uses of the public streets.”
Pickett v. California Pac. Utils., 619 P.2d 325, 327 (Utah 1980).
Public welfare demands that the people be served
with water, sewer systems, electricity, gas,
telephone and telegraph, as well as transportation
and means of travel. These services are vital to the
well-being of our various communities. It would be
almost impossible to meet these urgent
requirements without making use of the public
property. The presence of the utility facilities on
the streets constitutes a use in the public interest
subject to public regulation, and an object within
the purview of a public policy to be established by
the legislature.
State Road Comm’n v. Utah Power & Light Co., 353 P.2d 171, 175–76
(Utah 1960). Accord Pickett, 619 P.2d at 327. It is clear that
Questar’s gas pipeline is vital to the well-being of those citizens
living along Westview Drive and that its pipeline is otherwise in
the public interest.
¶28 In conclusion, because the District has neither express nor
implied authority to regulate Questar, or other public utilities, its
20140050-CA 15 2015 UT App 265Metropolitan Water District v. Questar Gas Company
rights against Questar are purely those which it has under
property law as the owner of an easement. Thus, we now turn
our attention to the District’s fallback position that “Questar’s
continued presence in the easement without an agreement
constitutes an unlawful interference with [the District]’s use and
enjoyment of the easement.”
II. THE DISTRICT COURT CORRECTLY CONCLUDED THAT
QUESTAR’S PIPELINE DOES NOT UNREASONABLY
INTERFERE WITH THE SLA.
¶29 The District argues that “[t]he district court erred in
deciding as a matter of law that the presence of the gas pipeline
in the SLA easement is not an unreasonable interference with the
easement.” While acknowledging that the SLA still “is in good
condition,” the District nevertheless argues that it is “making
preliminary preparations for major SLA rehabilitation and
replacement work in the next several decades.” The District also
asserts that “[m]eanwhile, as the SLA ages, gaskets between
joints are subject to deterioration, and the chances of leakage will
increase.” According to the District, the size of the equipment
and the depth of the excavations involved in an emergency
repair would “typically be very large.” Finally, the District
claims that an “unreasonable burden was clearly established”
because the “presence of a high-pressure gas line crossing above
the SLA and through the easement is an obvious burden on the
easement.”
¶30 “Utah adheres to the rule that the owners of the dominant
and servient estates ‘must exercise [their] rights so as not
unreasonably to interfere with the other.’” United States v.
Garfield County, 122 F. Supp. 2d 1201, 1242 (D. Utah 2000)
(alteration in original) (quoting Big Cottonwood Tanner Ditch Co.
v. Moyle, 174 P.2d 148, 158 (Utah 1946)). See also Restatement
(Third) of Prop.: Servitudes § 4.9 (Am. Law Inst. 2000) (“[T]he
holder of the servient estate is entitled to make any use of the
servient estate that does not unreasonably interfere with
20140050-CA 16 2015 UT App 265Metropolitan Water District v. Questar Gas Company
enjoyment of the servitude.”). “In the event of irreconcilable
conflicts in use, priority of use rights is determined by priority in
time, except as a later-created servitude takes free of another
under the applicable recording act.” Restatement (Third) of
Prop.: Servitudes § 4.12.
¶31 In its memorandum decision, the district court observed
that “[t]he parties have had their respective pipelines in the
easement for more than sixty years without any problems or
interference with each other and there is no issue of interference
at this time, despite an assertion from [the District] that there
may be in twenty or thirty years in the future.” The district court
therefore concluded that Questar’s pipeline does not “constitute
an unreasonable interference on the SLA” as a matter of law. We
agree. Nothing in the record establishes that Questar’s pipeline
unreasonably interferes or is inconsistent with the District’s non-
exclusive easement. Both the District and Questar have always
been able to, and continue to, effectively operate their respective
pipelines within the SLA corridor despite each other’s presence.
¶32 The District has conceded that it has no present plans to
do any work in Westview Drive; “it only has ‘preliminary plans’
for replacement work sometime in the next several decades.” As
such, the District has no way of knowing with certainty what
repairs and rehabilitation work, if any, will be undertaken in the
future, nor what the scope and nature of those potential
construction projects will be. Moreover, any suggestion that
Questar would not accommodate the District’s rehabilitation
work when acquainted with the District’s plans is entirely
speculative and, Questar insists, inconsistent with the practice of
the parties. Furthermore, the District’s alleged difficulty in fixing
the SLA, if repairs become necessary, is not purely the result of
Questar’s pipeline within the SLA. The District’s easement is
also encumbered by a sewer line and a water line that run
between Questar’s pipeline and the SLA, as well as “asphalt,
curb and gutter, landscaping, driveways, garages, . . . homes,
[and] the parking lot of two commercial buildings.” And even in
20140050-CA 17 2015 UT App 265Metropolitan Water District v. Questar Gas Company
the absence of Questar’s pipeline, the District is ultimately
subject to Salt Lake County’s rules and regulations when
excavating and refilling the portion of the SLA under Westview
Drive. See Utah Code Ann. § 17B-1-103(3)(a) (LexisNexis Supp.
2014). As it stands, the District simply cannot know what
requirements Salt Lake County will impose on any future SLA
repairs and how those requirements will implicate the nearby
pipeline owned by Questar—it can only speculate.
¶33 The District argues—and the emphasis is the District’s—
that North Union Canal Co. v. Newell, 550 P.2d 178 (Utah 1976),
stands for the proposition that “[i]mprovements that render the
easement holder’s future use of its easement more difficult or
costly constitute present interference with the easement.” This
contention is without merit. See generally Restatement (Third) of
Prop.: Servitudes § 4.9 cmt. c (“Whether the improvement is an
unreasonable interference with the servitude depends on the
character of the improvement and the likelihood that it will
make future development of the easement difficult.”).
¶34 In Newell, the plaintiff, North Union Canal Company, had
an easement to “use, maintain, clean and repair [the North
Union Canal], including access to do so along its banks.” 550
P.2d at 179. The canal had been in continuous operation for over
seventy-five years. Id. The defendants, the Newells, owned a
residence on the east side of the canal and had “recently installed
a five-foot high chain link fence along its west bank.” Id. The
Canal Company argued that the fence prevented it from the use
and enjoyment of its easement along the width of the
defendants’ property. Id. The Newells argued that because there
were gates at the north and south ends of their property, the
Canal Company still had access to the canal. See id.
¶35 The Utah Supreme Court observed that the Canal
Company had an established easement and that “when the canal
does need such attention, it would be necessary to have access to
it through the defendants’ property, in which event the fence as
20140050-CA 18 2015 UT App 265Metropolitan Water District v. Questar Gas Company
presently constructed would interfere with the plaintiff’s use
and enjoyment of its easement.” Id. The Court noted that while
the logical conclusion seemed to be “that the fence should be
removed,” “the object to be desired is to find some
accommodation of those conflicting interests, to the maximum
advantage and to the minimum disadvantage, of both parties.”
Id. at 179–80.
¶36 The Court further observed that requiring the defendants
to remove the fence entirely “would obviously involve the loss
of certain practical values” such as “the safeguarding of children
and others from getting into the canal; and also esthetic values in
improving the appearance of the property and the manner in
which the easement area is kept.” Id. at 180. Thus, the Court
ultimately concluded that although it would “require some
maturity of attitude and cooperation between the parties,” the
“better solution . . . would be for the court to exercise its
equitable powers and provide a more just and practical solution”
that would “permit the fence to remain.” Id. The Court
recommended that the Newells maintain their gates at the
northern and southern ends of their property, install additional
gates at reasonable intervals in the fence, and provide keys to the
Canal Company if the Newells desired locks on the gates. See id.The Court remanded to the district court so that the Newells
could choose “to either remove the fence, or accept and abide by
a decree modified as suggested herein.” Id. at 180–81.
¶37 We first note that, unlike in Newell, Questar has made no
recent improvement that renders the District’s future use of its
easement more difficult or costly. In Newell, the defendants had
recently installed a five-foot fence. Id. at 179. In this case,
however, Questar’s pipeline and the SLA have peacefully
coexisted underground for more than sixty years, and we decline
to conclude that Questar’s pipeline has suddenly become an
unreasonable interference as a matter of law simply because
Questar refuses to sign a license agreement with the District.
20140050-CA 19 2015 UT App 265Metropolitan Water District v. Questar Gas Company
¶38 Additionally, even if there were evidence of an
unreasonable interference on the near horizon, under Newell, the
solution would not necessarily be for Questar to remove its
pipeline from the easement—the result the District seeks. Rather,
the “better solution” would be to permit Questar’s pipeline to
remain and for the parties to cooperate with one another as they
have apparently done in the past. See id. at 180. In the district
court, Questar presented several affidavits, which stand
unrebutted, establishing that it “routinely shuts down or
reroutes gas lines at its own expense to accommodate
construction or repairs of other utility facilities” and that it
previously coordinated with the District when the District
constructed the Point of the Mountain Aqueduct (POMA) in the
streets of Sandy and Draper. In that instance, Questar facilitated
the District’s construction of POMA by relocating, temporarily
protecting, or temporarily shutting down its gas pipelines,
which involved rerouting or shutting down twenty-eight service
lines in one street alone. Cooperation of this nature would be the
better solution for the parties, as and when the District decides it
needs to upgrade the SLA or if some emergency circumstance
arises in the roadway easement requiring prompt remedial
action.
¶39 Moreover, requiring Questar to remove its pipeline from
the SLA corridor “would obviously involve the loss of certain
practical values.” See id. As previously discussed, the Utah
Supreme Court has determined that “[t]he presence of . . . utility
facilities on the streets constitutes a use in the public interest.”
Pickett v. California Pac. Utils., 619 P.2d 325, 327 (Utah 1980)
(citation and internal quotation marks omitted). Here, as it is
entitled to do under section 17-50-306 of the Utah Code, Salt
Lake County granted a franchise to Questar to “construct,
maintain and operate in the present and future roads, streets,
alleys, highways and other public rights-of-way . . . within
County limits a distribution system for furnishing natural and
manufactured gas to the County, the County’s inhabitants and
persons for heating and other purposes.” Questar’s pipeline
20140050-CA 20 2015 UT App 265Metropolitan Water District v. Questar Gas Company
provides natural gas to the homes along Westview Drive and is
undoubtedly “vital to the well-being” of Westview Drive’s
residents. See Pickett, 619 P.2d at 327 (citation and internal
quotation marks omitted). Thus, removing Questar’s pipeline
from the SLA corridor would be detrimental to the public
interest, as well as wholly impractical.
¶40 Under the present facts, there is no indication that
Questar’s pipeline unreasonably interferes with the SLA—the
pipelines have peacefully coexisted for more than six decades,
and they more or less burden each other equally. The District’s
claim that Questar’s pipeline will interfere with its future
construction plans is purely speculative at this time, and we will
not reverse the judgment of the district court on the basis of
what might happen if the District’s contemplated repairs do in
fact occur or if emergency repairs are in fact required. See City of
Pasadena v. California–Michigan Land & Water Co., 110 P.2d 983,
987 (Cal. 1941) (“It would not be right at this time . . . to furnish
[relief] for a state of affairs which may never arise, or which may
not arise until some remote period.”) (omission in original)
(internal quotation marks omitted).
CONCLUSION
¶41 The district court correctly concluded that the District
lacks either express or implied statutory authority to regulate
Questar and other public utilities within the SLA corridor or
elsewhere. The court also correctly concluded that there is no
issue of interference at present and that Questar’s pipeline does
not constitute an unreasonable interference on the SLA.
Accordingly, we affirm the denial of the District’s motion for
summary judgment and the dismissal of its claims.
20140050-CA 21 2015 UT App 265